Mike is a good worker, but he has recently been hurt on the job. He is a bricklayer. It is all he has ever done. He is 53 years old. He did not go beyond the 10th-grade in high school. His family was poor. His dad died young, and he needed to help his family out, so he entered the work force full time.

His bricklaying job had served him and his family well. Now, the doctor says that after his surgery, he cannot lift over 15 pounds about waist level. He cannot be a bricklayer any more. His attorney says he can only get him $15,000. The attorney says there has been a drastic change in the law. This does not seem fair. How can this be right? Something funny is going on here.

Terrence is also a good worker. He is a dump truck driver. He recently fell off the bumper of the truck when wind caught the open hood while he was checking the oil. The workers’ compensation doctor says his shoulder and neck problem was not caused by falling off the truck. He does not understand this and point out to the orthopedic surgeon that he did not have any pain in his neck or shoulder before. The answer from the doctor is the same.

He sees another orthopedic surgeon and later a neurosurgeon on his own. He ends up having surgery on his neck. He hires an attorney who proceeds to trial. He loses his case based on something called a presumption. His attorney says there has been a drastic change in the law. How can this be right? Something funny is going on here.

These two workers are correct; there is something funny going on here.

Under the old workers’ compensation law, in terms of causation, any reasonable doubt as to whether an injury was caused by work or not was given to the injured employee. This changed for injuries after July 1, 2014.

Now, the workers’ compensation physician (whose financial interests are aligned with the insurance company) must state that the work injury is the “primary cause” (51% or more) of the need for treatment including surgery.

This works against the blue-collar worker (especially the older worker) because the workers’ compensation physician’s opinion on the cause of the injury is presumed to be accurate. Why? No reason is given under the law. But doesn’t the workers’ compensation physician have a conflict of interest? Yes.

We all know that the medical profession is not an exact science. Go to one doctor, and he or she recommends this or that. Go to another doctor, and the recommendations are different. Reasonable minds in the medical profession often disagree in terms of treatment, causation, whether a surgery is warranted, etc.

This presumption is unfair and should be removed from the workers’ compensation law. The law should allow the doctors to express their own opinions without the law favoring one doctor’s opinion over another. Let the doctors battle it out in depositions and let the judge decide who is right without giving a presumption to either side.

The “primary cause” language should be weakened to take into account an aggravation of a pre-existing condition since many older employees have pre-existing arthritic problems that younger employees do not experience.

What happened to our bricklayer’s case? Why is his case worth so little? The 2014 law drastically reduced the value of his case by removing the concept of “vocational impairment.”

Under the old law, when an employee loses his job due to a work injury, the law looked at how this injury affects the employee in what was called the “open job market.” Before our bricklayer was injured, he was 100% job OK. Now with the 15-pound weight restriction, he may be 60% job disabled. In other words, 60% of the jobs he used to qualify for are no longer available to him due to the job injury and its resulting restrictions.

This concept of “vocational impairment” was laid to waste by the drastic changes under the new workers’ compensation law, which allows only a small increase in the value of the case if the employee is over 40 or does not have a high school diploma or GED or has a lesser paying job.

This concept of vocational impairment should be brought back into consideration to adequately compensate the employee for his job loss in the job market.

There are other things that can be done to help the employee and premier among them is the calculation of what is known as a “rating.” In short, when an employee has sustained a permanent injury (i.e. permanent effects from an injury), his or her rating (i.e. degree of medical impairment) is decided by the workers’ compensation physician.

This physician knows the higher the rating, the more upset the insurance company will be with the physician, which affects the referrals by the insurance company to the physician. The physician learns quickly to give as low a rating as possible to avoid adversely affecting the chain of referrals to the physician.

This rating by the workers’ compensation doctor is presumed to be accurate, but as we have seen, reasonable minds in the medical community often differ, and the determination of the rating is no exception. The presumption should be removed in fairness to the injured employee.

More than a few on the political spectrum believe that government is too big and too involved in the lives of the individual. Smaller government is what they want.

That is why it is odd that the Tennessee state government was expanded enormously by essentially taking over the private workers’ compensation system by creating, to the tune of untold millions of dollars, the Workers’ Compensation Claims Court System.

This expansion of the Tennessee state government was quite simply unnecessary. Tennessee already had a court system equipped to handle the workers’ compensation litigation -- the Circuit and Chancery Courts already in every county in the state. Those judges were already on the state's payroll. What sense does it make to add more judges and an entire court system to the payroll, which causes everyone’s taxes to increase?

Tennessee is a fine state with wonderful and hardworking people, most of whom are good blue-collar folks. Is this really the kind of system that we want to take care of our workers when they are hurt?

Most employees do not get hurt during their work life, but for those who do, a fair and just system should take care of them. A system where the truth can ring forth, and not the mockery of justice that we have now. The system we have now is engineered to thwart the injured employee’s right to a fair recovery.

Tennesseans deserve better. Our new governor needs to take the lead on this. Let’s hope he does so for we can all trace our roots to some blue-collar ancestor.

We can do our part by contacting our state representatives. This problem can be corrected, and truth and justice for the injured employee will once again prevail.

Steve Taylor is an attorney in Memphis.



Read or Share this story: